December 07, 2005

Publius SHOUTS (Part 1: Theory)

by RonK, Seattle

"The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT."

That's Alexander Hamilton, as Publius in Federalist No. 69, SHOUTING across the centuries. Whenever he pens this phrase or its variants, he SHOUTS, i.e., capitalizes for emphasis. What is he trying to tell us?

Steeped in traditions of English and Colonial law, the powers of Pardon and Impeachment were indispensable to the Framers' scheme for economizing virtue in public men. Indispensable powers -- but where to vest them?

Hamilton and his contemporaries plumbed many extant models for strengths and vulnerabilities.

...the executive ... is to be vested in a single magistrate ... if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.

And they fretted over problems of tyranny, faction, conspiracy, insurrection, betrayal and bargaining.

The governor of New York may pardon in all cases ... If a governor of New York, therefore, should be at the head of any such conspiracy ... he could insure his accomplices and adherents an entire impunity.

In the end, they settled on particulars of language and logic whose intended application may be broader than commonly understood. Maybe this is why Publius is SHOUTING at us.

In what follows, for brevity, please read "impeachment" in the (inaccurate) colloquial sense of "impeachment and conviction". [UPDATE: Text below has been adjusted per teacherken's note that removal and disqualification are separable judgments.]

We'll open up with a routine warm-up toss.

Impeachment is not just for Presidents.Article II, Section 4 renders "The President, Vice President and all civil officers of the United States" susceptible to impeachment.

Who are these civil officers? An early precedent excludes Members of Congress -- removable by their own respective bodies. Past practice affirmatively includes judges and cabinet officials. And there's a sturdy originalist case for stretching this envelope.

Would a subcabinet official -- like former Asst. Sec. of State Elliott Abrams -- qualify? How about a "Senior Administration Official" who does not require Senate confirmation -- like Vice Presidential Chief of Staff Scooter Libby? Is an independent agency head -- like CPB's Kenneth Tomlinson -- a qualified "civil officer"?

Impeachment extends beyond removal from office.It has never been done, but in theory an officer could An officer can be impeached even after leaving office. (Governors of Delaware and Virginia could be impeached only after leaving office.) It follows that "impeachment" was conceived as more than just a lever to break a corrupt official's white-knuckle grip on the big desk. [Correction: It has been done, in the case of Secretary of War Wm. Belknap (1876), who resigned as the House proceeded to a vote. Good general reference Q&A here.]

Impeached officers can be barred from "any office of honor, trust, or profit under the United States". An impeached Bill Clinton, for instance, could not have been credentialed for goodwill missions to tsunami-land. Impeachment held the prospect of a political "death penalty", a lifetime ban ... and possibly more.

A presidential pardon does not impede an impeachment.This seems clear enough. In contrast to the Governor of New York, our POTUS "... though he may even pardon treason ... could shelter no offender, in any degree, from the effects of impeachment".

In theory, a pardoned official can still be impeached.Consider the Iran-Contra conspirators drummed out of the Reagan administration, and pardoned at the close of Bush41's tenure. If Congress had proceeded to impeach and disqualify those already convicted (or whose investigations and prosecutions were derailed by the pardons), Elliott Abrams could never have signed on with Bush43 as "Deputy Assistant to the President and Deputy National Security Advisor for Global Democracy Strategy" ... and the globe might consequently be safer for democracy.

Now to the Big Question: Does impeachment override a presidential pardon?

I dunno. I am not a lawyer, much less an eminent constitutional scholar ... but does not our friend Publius drop broad hints in the affirmative?

Why else would he so pointedly contrast the abuse-prone New York model with the new, improved US model? Why does he shout incessantly at the mention of Pardon?

He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT

And reconsider this quote, with my emphasis added. The President "could shelter no offender, in any degree, from the effects of impeachment". Are there "degrees" of removal and prohibition from future office? No. What are there degrees of? Infractions, penalties, punishments, judgements and sentences.

The Framers labored mightily to thwart the ambitions of Tyrants without unduly exposing their "Chief Magistrate" to the ravages of Faction. They vested, delineated and circumscribed the various powers with care. Where the Constitution's minimal text is annoyingly nondispositive, they lay out the underlying logic in the Federalist Papers and elsewhere.

As Nixon discovered, the president's obligations go far beyond the requirement that he not criminally obstruct justice. Madison explained, "If the President be connected, in any suspicious manner with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty." Using the power of the presidency to "pardon crimes which were advised by himself" or to "stop inquiry and prevent detection" of crimes was, according to Madison, an impeachable offense.

The power to exempt one's accomplices from punishment is the kind of loophole a Tyrant could drive a juggernaut through. And recent officeholders have grown bold in granting pardons to subordinates on the way out the door.

What is the scope of the exception in "EXCEPT IN CASES OF IMPEACHMENT"? Do we read it narrowly: "You may pardon them, but we can still impeach them"? Or broadly: "You may pardon them, EXCEPT IN CASE WE IMPEACH THEM"?

I'll leave the topic with a couple of discussion questions.

Suppose Congress has this power - to trump a pardon with an impeachment. How might an Opposition Party apply it in today's context?

Suppose Congress has not this power. Is it a Framers' technical oversight, crying out for clarifying legislation or Amendment?

Comments

"He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT"

The power is excepted in the case of impeachment. It seems from this an impeachment trumps a pardon. So maybe we'll see Cheney, Feith, Rove, Bush, Rice, Rumsfeld, Wolfowitz, and a few dozen others do some time after all. We can only hope.

Further, if judgment in cases of impeachment merely extended no further than removal from office, then a resigned or dismissed officer would have nothing to fear from it.

But why couldn't Congress decide to take its full pound of flesh? Sure, sure, removal from office is nice, too. But where's my disqualification to hold and enjoy any office of honor, trust or profit under the United States? We have unfinished business here!

And one more thing. Why not just say the impeachment power reaches anyone who does or has held any office of honor, trust or profit under the United States? It sounds to me like if you hold one of these offices, they've got a remedy in mind for you if you should lose your marbles.

in the sense that a "case of impeachment" means not a specific impeachment proceeding, but rather a description of circumstances which in a general sense describe activity wherein a President may be impeached

for example: any criminal act by an official of a given administration, perpetrated in service to that President, by definition implicates that President in the activity - whether he be guilty of complicity or negligence in said behavior

if the definition of "case of impeachment" is general and not specific, no President may grant pardons to anyone who commits a crime in service to that President, because such illegality would be a "case" which could - in the abstract if not in reality - be grounds for impeachment

this definition is at odds with the current understanding of the constitution's text, because it would have foreclosed the pardon to Nixon and the Iran/contra pardons granted by Bush

but it certainly doesn't strain the dictionary meaning of the word, and it would serve as a deterrent to Presidents violating the law with impunity

There is a misstatement about the impact of Impeachment. As described in Article I, Section 3, paragraph 7 the text reads that the judgment "shall not extned further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States;"

Please not the connecting "and" - there are two separate sets of punishment. One cannot apply the second part - disqualification - without removal from office. But the punishment could be limited to removal from office. The three charges voted out fo the Judiciary Committee against Richard Nixon only had removal from office as a punishment. And as proof of the optional nature of the additional pmunishment after the "and" I offer the example of Alcee Hastings, removed via impeahcment conviction as a Federal judge but now serving as a member of the House.
The fact that the Republicans in the House were willing to apply the "death penalty" provision of disqualification against Clinton showed the egregiousness of the attack -- how did Clinton's actions in any way justify a punishment worse than that recommended for Nixon?

It is a good point, but I don't think it's dispositive. The text describes for us the outer limits of the penalties for impeachment, but not what subsets are applicable.

While it is true for reasons of logic that one cannot apply the second part without removal from office -- else one has not in fact applied the second part -- I would argue that the "and" does not mean they have to be effected by the same mechanism. If removal from office is effected in some other manner, the option for disqualification might well still be available.

In my view, reading "and" the way teacherken does makes the "death penalty" a mandatory accompaniment of impeachment. The framers could have chosen to use "or" in its place, but didn't. I couldn't tell you whether the probably modern "and/or" was in use then, but "and" is the only construction which would allow for flexibility.

I would also argue that Congress might be within its rights to impeach and seek both punishments even against an officer who had "resigned" -- and possibly one who had been dismissed. By such an act, Congress would in effect refuse the resignation in favor of formal ejection. If the presidential pardon cannot trump impeachment, surely a mere resignation cannot.

Removal absolutely would be mandatory, I agree. As I said, if only as a matter of logic. You can't disqualify a person from holding office and still have them actually hold it. So even if Congress chose for some reason to try to exercise part two without part one, the successful execution of part two would result in the execution of part one.

The implication I was disputing was that Congress could not impose disqualification if it did not itself also do the removing from office under the mechanism of impeachment.

The history of impeachment strongly suggests that Congress's power to impeach officials trumps the President's power to pardon.

The English Parliament used impeachment to remove royal officials prior to the days that H.M. Government was fully responsible to the House of Commons, when the King could refuse to sack ministers who had lost the confidence of Parliament (e.g. Stafford). Unless you're John Yoo or one of the other wacko interpreters of American executive authority as equal to (or greater than) that of the English kings prior to the beheading of Charles I, the Framers intended Congress to have the final say in removing the civil officers of the Government and, if Congress saw fit, disqualifying impeached officials from holding federal office.

If you believe in the separation of powers (as opposed to paying lip service to it so long as somebody else's ox is being gored), impeachment has no effect on civil or criminal liability for the acts of a Government official in a court of law. Just as the President cannot interfere with impeachment, neither can Congress interfere with a pardon. Equally, a Government official cannot claim that impeachment and conviction by the Senate is a final adjudication of his or her liability; again, it is an entirely separate matter.

I think the language of the Constitution ("except in cases of impeachment") was intended to be one of the "checks and balances" that cross the boundaries of separation of powers. That is the one instance in which Congress is explicitly permitted to "interfere" with pardons, if it can be said to be "interference" at all. I think not. Granted, it takes an act of Congress to trigger it, but it is the text of the Constitution, not Congress, which renders the pardons ineffective.

DeWitt Grey -- To my knowledge, there has never been any suggestion that a pardon could immunize any individual from impeachment.

The question is this: Can impeachment (and conviction) render a pardon inoperative?

I don't agree with Kagro X that the text of the Constitution reads plainly in the affirmative. I think it's a mater of interpretation, but I believe the Framers' commentaries and precedents greatly favor this interpretation ... and that has some very interesting implications.

As RonK rightly notes, a pardon cannot immunize anyone from impeachment, but my point is that impeachment and conviction do not have any effect, one way or another, on a Government official's legal liability. As Article I, Section 3, Clause 7 states:

"Judgments in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

Congress can do no more than remove a Government official from his or her position and disqualify him or her from Federal office. Those remedies are, however, entirely separate from the remedies of "Indictment, Trial, Judgment and Punishment, according to Law." The President can reprieve or pardon the Government official from these legal remedies, but cannot interfere with Congress's power to remove and disqualify officials. By the same token, an official that Congress finds guilty of "Treason, Bribery, or other high Crimes and Misdemeanors" is entitled to full litigation of charges brought against the official in a court of law, and an acquittal by a jury would shield the official from further sanction "according to Law", although equally the jury or judge would have no power to interfere with the Congressional sanctions of removal and disqualification from office, no matter how much they might disagree with Congress's judgment in the matter.

As long as the President does not purport to interfere with the Congressional impeachment powers (removal and disqualification from office), I believe that a presidential pardon can release an impeached governmental official from all other legal liability, just as an acquittal after trial would so release the official from liability.

As to the alternative in controversy, then, Congress should no more have the power to interfere with a presidential pardon of an impeached official than it should have the power to interfere with a trial of the impeached official in a court of law.

I would think that the recent spectacle of a House of Representatives impeaching a President in the teeth of popular opposition would be sufficient to give everyone pause about empowering Congress further to override the Constitutional protections of due process and the pardon power to prevent or ameliorate miscarriages of justice.

By the same token, if a President abuses the pardon power to shield a government official from legal liability, Congress can redress the abuse by removing and disqualifying the official and, ultimately, the President.

It might have been "unfair" that Nixon faced no jeopardy for criminal acts because of Ford's pardon, but it was far more significant for the nation that he was removed from office. Had he been a danger to the nation even disgraced and out of office, then it would have been appropriate for Congress to have impeached Ford for having pardoned Nixon. But the Congressional "prerogative" should go no further than that.

You may not like the fact that wrongdoing Governmental officials can escape legal liability via pardon, but there is no defensible distinction between a pardoned official guilty of impeachable wrongdoing and any other pardoned criminal. Indeed, the "ordinary" pardoned criminal may pose a greater threat to society than the pardoned official, particularly if Congress has disqualified the pardoned official from taking office again.

If you want a Constitutional amendment, limit the pardon power to commutation of sentences, or the like. But do it across the board, and don't give Congress any more power than it already has to abuse its prerogative.

I love this idea. But even if we were to make it work, theoretically, it does little to address the increasing use of a shadow government to do the really nefarious things they do.

How can we get rid of Ledeen permanently, after all? His effectiveness--for those who want to start unjustified wars--is in his ability to negotiate the back alleys of intelligence to plant bad intelligence. He's an exmployee of the AEI, not the Federal Government. It'd make him easier to get to (that is, he is not protected as an employee of the government). But we can't impeach him. Nor can we impeach Richard Perle (now that he stepped down from the DPB).

emptywheel, I don't know that there's anything the Constitution permits doing to silence the voices of nefarious private citizens. In fact, it's the document that prohibits it.

But even the shadow government needs cover from the real government. It is through their association with its "occupying forces" that their nefarious plans gain what credence they do. Removing and disqualifying those who implement their designs is all we've got, but the case of Elliott Abrams, for instance, illustrates the importance of disqualification.

Of course, by way of plugging my own pet theories, private citizen or not, conspiracy to commit espionage (or for that matter, treason) can always reach you.

As a former Asst. Sec. of Defense, Richard Perle can be impeached -- in theory -- for acts he committed prior to or during his official tenure. For subsequent acts? That's a more difficult call. Emptywheel is correct, we cannot remove Perle's arguably undue influence (not would I choose to, on First Amendment grounds), and the outsourced networking of privatized policy formation may be a challenge the Framers failed to contemplate. (Or did they?)

HOWEVER, policy hijackers require confederates on the inside to assist them, and more insiders to look the other way. That presents an accessible working surface, and there we can have an effect.

Let's test it out. Was Gerald Ford right when he said an impeachable offense was whatever the House said it was? Might not an impeachable officer, then, be whomever the House says it is?

(Walter) Nixon v U.S. said that the Constitution's grant of "sole power" to the Senate to "try" cases of impeachment meant that the definition of "try" was a nonjusticiable issue. (Nixon complained that presenting the full Senate with a committee transcript of consideration of the House's articles of impeachment and giving Nixon a chance to make a personal appeal to the Senate was insufficient as a "trial.")

The same Constitution grants the House the "sole power of impeachment."

There are other processes below impeachment and conviction that could -- and in many situations do -- deal with the Ledeens and Perles of the world.

Denial of access to classified material, for instance, has long been used to strip a player of necessary information to continue to play. Oversignt hearings can have the same effect. Taken together, these were the two tools of the McCarthy era -- Loyality Board Hearings followed up by HUAC or Jenner Committee hearings in the House and Senate.

I am not at all recommending the style of that era, but in the right hands investigative oversight hearings into "Who hijacked Foreign Policy and How was it Hijacked?: could have the same effect on the Ledeens and Perls of this generation.

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